Shri Vijay U.Mehta, Surat v. The Dy.CIT.,Cent.Circle-1,, Surat

MA 203/AHD/2009 | misc
Pronouncement Date: 31-07-2013 | Result: Allowed

Appeal Details

RSA Number 20320524 RSA 2009
Bench Ahmedabad
Appeal Number MA 203/AHD/2009
Duration Of Justice 4 year(s) 1 month(s) 13 day(s)
Appellant Shri Vijay U.Mehta, Surat
Respondent The Dy.CIT.,Cent.Circle-1,, Surat
Appeal Type Miscellaneous Application
Pronouncement Date 31-07-2013
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted D
Tribunal Order Date 31-07-2013
Assessment Year misc
Appeal Filed On 17-06-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH AHMEDABAD BEFORE MUKUL KR. SHRAWAT JUDICIAL MEMBER AND SHRI A.K. GARODIA ACCOUNTANT MEMBER M.A. NO.203/AHD/2009 (ARISING OUT OF IT(SS)A NO. 83/AHD/2001) SHRI VIJAY KUMAR MEHTA 4/3884 CHOWKI SHERI BAGUMPURA SURAT VS DCIT CENTRAL CIRCLE-1 SURAT. (APPELLANT) (RESPONDENT) REVENUE BY : SHRI O.P. BATHEJA ASSESSEE(S) BY : SHRI M.K. PATEL / // / DATE OF HEARING : 05/07/2013 / DATE OF PRONOUNCEMENT: 31/07/2013 / O R D E R PER SHRI A.K. GARODIA ACCOUNTANT MEMBER : THIS M.A. IS FILED BY THE ASSESSEE. IN THE M.A. IT IS SUBMITTED BY THE ASSESSEE THAT THE CO WAS FILED BY THE ASSESSEE IN WHICH THIS ISSUE WAS RAISED THAT THE ASSESSMENT IS NOT VALID BECAUSE THE AO HAS NOT FULFILLED THE REQUIREMENT FOR ISSUANCE OF NOTICE UNDER SECTIO N 143(2) WITHIN THE PRESCRIBED TIME AND THEREFORE ASSESSMENT IS BAD IN LAW. IT IS ALSO SUBMITTED THAT THIS ISSUE WAS DECIDED BY THE TRIBUN AL IN THE IMPUGNED ORDER AGAINST THE ASSESSEE BY HOLDING THAT SINCE TH E ASSESSEE HAS PARTICIPATED IN THE ASSESSMENT PROCEEDINGS BEFORE T HE AO THIS GROUND CANNOT BE VALIDLY RAISED BY THE ASSESSEE IN VIEW OF THE RECENT AMENDMENT BROUGHT IN STATUTE. ON THIS BASIS THE CO OF THE AS SESSEE WAS DISMISSED. IT IS FURTHER SUBMITTED IN THE M.A. THAT AMENDMENTS RE FERRED TO BY THE TRIBUNAL IS THE AMENDMENT AS PER WHICH SECTION 292B B HAS BEEN INSERTED MA N O.203/AHD/2009 (IN IT(SS)A NO.83/AHD/2001) SHRI VIJAY KUMAR UTTAMRAM MEHTA VS. DCIT SURAT - 2 - IN THE STATUTE BOOK W.E.F. 1.4.2008. IT IS ALSO SUB MITTED THAT AS PER THE DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL RENDE RED IN THE CASE OF KUBER TOBACCO PRODUCTS (P) LTD . REPORTED IN (2009) 120 TTJ (DEL) (SB) 577 WHEREIN IT WAS HELD THAT THE PROVISION OF SECTION 292BB CANNOT BE CONSTRUED RETROSPECTIVE AND HENCE THE SAME IS A PPLICABLE IN A.Y. 2008-09 AND SUBSEQUENT ASSESSMENT YEARS. IT IS SUBM ITTED THAT THEREFORE THE TRIBUNAL DECISION IN CO OF THE ASSESSEE IS CONT AINING AN APPARENT MISTAKE WHICH SHOULD BE RECTIFIED. 2. IN THE COURSE OF HEARING BEFORE US IT WAS SUBMI TTED BY THE LEARNED A.R. OF THE ASSESSEE THAT THIS ISSUE IS SQUARELY CO VERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF HONBLE APEX COURT REND ERED IN THE CASE OF ACIT VS. HOTEL BLUE MOON REPORTED IN (2010) 321 ITR 362 (SC) AND SINCE THIS TRIBUNAL DECISION IS NOT IN LINE WITH TH IS JUDGMENT OF HONBLE APEX COURT THIS TRIBUNAL IS CONTAINING AN APPARENT MISTAKE WHICH SHOULD BE RECTIFIED. IN SUPPORT OF THIS CONTENTION RELIAN CE WAS PLACED ON A TRIBUNALS DECISION RENDERED IN THE CASE OF M/S. INDUCTOTHERM (INDIA) PVT. LTD. VS. ACIT IN M.A. NO.80/AHD/2010 DATED 20.4.2012 A COPY OF THIS TRIBUNAL ORDER WAS SUBMITTED. 3. AS AGAINST THIS IT IS SUBMITTED BY THE LEARNED D.R. OF THE REVENUE THAT THERE IS NO APPARENT MISTAKE IN THE TRIBUNAL O RDER. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIN D THAT AS PER PARAGRAPH 16 OF THE IMPUGNED TRIBUNAL ORDER THE TR IBUNAL HAS DECIDED THE ISSUE RAISED BY THE ASSESSEE IN THE CO AND FOR THE SAKE OF READY REFERENCE PARAGRAPH 16 OF THE IMPUGNED TRIBUNAL ORDER IS REPR ODUCED BELOW: MA N O.203/AHD/2009 (IN IT(SS)A NO.83/AHD/2001) SHRI VIJAY KUMAR UTTAMRAM MEHTA VS. DCIT SURAT - 3 - IN THE CROSS OBJECTION THE ASSESSEE HAS CHALLENGED THE ASSESSMENT BY STATING THAT STATUTORY REQUIREMENT FOR ISSUANCE OF NOTICE WAS NOT COMPLIED WITH WITHIN THE PRESCRIBED TIME AND THERE FORE THE ASSESSMENT WAS BAD IN LAW. AS THE ASSESSEE HAS PARTICIPATED IN THE PROCEEDINGS BEFORE THE A.O. THIS GROUND CANNOT BE VALIDLY RAIS ED BY THE ASSESSEE IN VIEW OF THE RECENT AMENDMENT BROUGHT ON STATUTE. AC CORDINGLY CO IS REJECTED. 5. FROM THE ABOVE PARAGRAPH OF THE TRIBUNAL ORDER IT IS SEEN THAT THIS ISSUE WAS DECIDED BY THE TRIBUNAL ON THIS BASIS THA T SINCE THE ASSESSEE HAS PARTICIPATED IN THE PROCEEDINGS BEFORE THE AO THIS GROUND CANNOT BE RAISED BY THE ASSESSEE IN VIEW OF THE RECENT AMENDM ENT BROUGHT ON STATUTE. THE BLOCK PERIOD IN DISPUTE BEFORE US IS A .Y. 1989-90 TO 1998- 1999. THE CONCERNED AMENDMENT WHICH HAS BEEN CONSID ERED BY THE TRIBUNAL IN THE ABOVE PARAGRAPH IS THE INSERTION OF SECTION 292BB IN THE FINANCE ACT 2008. IT IS HELD BY THE SPECIAL BENCH OF THE TRIBUNAL THAT THIS SECTION 292BB IS PROSPECTIVE AND NOT RETROSPEC TIVE. IN THE PRESENT CASE EVEN THE ORDER OF LEARNED CIT(A) IS DATED 8.2 .2001 AND HENCE THE AMENDMENT HAS BEEN INSERTED MUCH AFTER THE ORDER OF LEARNED CIT(A). AS PER THE SPECIAL BENCH DECISION CITED BY THE ASSESSE E IT WAS HELD THAT THIS SECTION IS PROSPECTIVE AND NOT RETROSPECTIVE. MOREO VER THIS ISSUE RAISED BY THE ASSESSEE IN THE CO IS SQUARELY COVERED IN FA VOUR OF THE ASSESSEE BY THE JUDGMENT OF HONBLE APEX COURT RENDERED IN THE CASE OF HOTEL BLUE MOONS (SUPRA). ADMITTEDLY THIS DECISION OF HONBLE APEX COURT RENDERED IN THE CASE OF HOTEL BLUE MOON (SUPRA) IS SUBSEQUENT DECISION BUT AS PER THE JUDGMENT OF THE HONBLE APEX COURT R ENDERED IN THE CASE OF ASSISTANT COMMISSIONER OF INCOME-TAX V. SAURASHTRA KUTCH STOCK EXCHANGE LTD . REPORTED IN 305 ITR 227 IT WAS HELD THAT IF THE TRIBUNAL DECISION IS NOT IN LINE EVEN WITH SUBSEQUENT DECISI ON OF HONBLE JURISDICTIONAL HIGH COURT OR OF HONBLE APEX COURT THEN IT HAS TO BE MA N O.203/AHD/2009 (IN IT(SS)A NO.83/AHD/2001) SHRI VIJAY KUMAR UTTAMRAM MEHTA VS. DCIT SURAT - 4 - ACCEPTED THAT THERE IS AN APPARENT MISTAKE IN THE T RIBUNAL ORDER AND IT SHOULD BE RECTIFIED. THE TRIBUNAL ORDER RENDERED IN THE CASE OF M/S. INDUCTOTHERM (INDIA) PVT. LTD. (SUPRA) ALSO SUPPORTS THE CASE OF THE ASSESSEE. AS PER THE JUDGMENT OF HONBLE GUJARAT HI GH COURT RENDERED IN THE CASE OF SUHRID GEISY AS REPORTED IN 237 ITR 834 IF THE TRIBUNAL DECISION IS NOT IN LINE WITH EVEN A SUBSEQUENT DECI SION OF HONBLE JURISDICTIONAL HIGH COURT OR OF HONBLE APEX COURT THEN IT HAS TO BE ACCEPTED THAT THERE IS AN APPARENT MISTAKE IN THE T RIBUNAL ORDER. RESPECTFULLY FOLLOWING THIS JUDGMENT OF THE HONBL E JURISDICTIONAL HIGH COURT AND ALSO OF THE HONBLE APEX COURT CITED ABOV E WE HOLD THAT IN THE PRESENT CASE ALSO THERE IS AN APPARENT MISTAKE IN THE TRIBUNAL ORDER BECAUSE THE SAME IS NOT IN LINE WITH THE SUBSEQUENT JUDGMENT OF THE HONBLE APEX COURT RENDERED IN THE CASE OF HOTEL BLUE MOON (SUPRA) . HENCE WE RECALL THE TRIBUNAL ORDER IN RESPECT OF C O NO.97/AHD/2003. 6. REGISTRY IS DIRECTED TO FIX THE CO FOR HEARING I N DUE COURSE. 7. IN THE RESULT M.A. OF THE ASSESSEE IS ALLOWED. SD/- SD/- (MUKUL KR. SHRAWAT) (A.K. GARODIA) JUDICIAL MEMBER ACCOUN TANT MEMBER AHMEDABAD; DATED 31/07/2013 PRABHAT KR. KESARWANI SR. P.S. TRUE COPY / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. !' / THE RESPONDENT. 3. #$#% ' '& / CONCERNED CIT 4. ' '&() / THE CIT(A)-III AHMEDABAD MA N O.203/AHD/2009 (IN IT(SS)A NO.83/AHD/2001) SHRI VIJAY KUMAR UTTAMRAM MEHTA VS. DCIT SURAT - 5 - 5. )*' % ' ' % -$ / DR ITAT AHMEDABAD 6. *./ 0 / GUARD FILE. / BY ORDER 1 11 1/ // / ' #2 ' #2 ' #2 ' #2 ( DY./ASSTT.REGISTRAR) ' ' % ' ' % ' ' % ' ' % -$ -$ -$ -$ / ITAT AHMEDABAD